For the first time since 1998, the EEOC released proposed guidance regarding workplace retaliation that would supersede the EEOC Compliance Manual, Volume II, Section 8: Retaliation. The guidance is intended to educate the public on how the EEOC approaches charges, determinations, and litigation considerations involving the most frequently alleged EEOC violation - retaliation. However, the guidance, which was published for public opinion on January 21, 2016, does not simply apply and explain current law. Rather, it essentially redefines retaliation and leaves open the door for increased retaliation lawsuits and unfavorable decisions for employers.

Workplace retaliation has historically revolved around adverse actions taken by an employer (or employment agency, or labor organization) against a covered individual because of the individual's engagement in a protected activity. The proposed guidance continues to require protected activity and adverse action as two elements of a retaliation claim; however, the proposal expands the definition of protected activity, redefines adverse action, and virtually rewrites the standard for a causal connection between the two.

If the guidance is finalized unchanged, according to the EEOC, protected activity would encompass any activity that the employee subjectively believes is unlawful, as long as the employee's belief is not "patently specious." The definition also expands oppositional activity to include an individual who accompanies a coworker to make a complaint. The EEOC would also include participation activity, regardless of its truth or validity, as protected. For example, an employee would not have to have a reasonable, valid allegation, nor tell the truth during an EEOC investigation, to still retain protection and thus remain secure from employer disciplinary actions. The guidance even goes on to acknowledge its contradiction with many courts (including that of the Sixth Circuit, which covers Ohio), which do not include internal EEO investigations and harassment complaints as covered protected activity unless an EEOC charge is filed.

Reinforcing its historic opinion, the EEOC expands "adverse action" to include "any action that might well deter a reasonable person from engaging in protected activity." This goes beyond work-related activities to encompass actions that have "no tangible effect on employment, or even an action that takes place exclusively outside of work." Therefore, a retaliation claim could be made for employer action that, in fact, results in no harm whatsoever. The EEOC also adopts the "zone of interest" concept to allow for third parties to bring claims (i.e. an adverse action against an individual for a family member's protected activity).

Perhaps most troubling for employers, this EEOC guidance goes beyond mere suggestion that direct evidence of a causal nexus between a protected activity and adverse action is no longer necessary. The guidance states that "a 'convincing mosaic' of circumstantial evidence that would support the inference of retaliatory animus" would be sufficient to demonstrate causal connection. For example, retaliatory conduct could be found years after protected complaint participation based on suspicious timing of the employer's action, and even comparative evidence regarding treatment of other employees could be used to support an inference of retaliatory conduct. Also, retaliation would not have to be the sole cause of an adverse action, rendering a mixed motive defense useless.

The EEOC guidance also includes what it considers "best practices" for reduction of retaliatory conduct in the workplace.

If the EEOC guidance is finalized, employers should be attentive to its content and mindful in dealings with individuals who are involved in any "protected activity," keeping in mind that "protected activity" will be construed broadly.